Friday, May 4, 2012

Using the legal process to silence critics

The Thomas M. Cooley Law School served me with a subpoena yesterday afternoon, commanding me to produce certain documents purportedly relevant to this civil action. The documents in question include all my communications with the defendants, and "all documents and communications . . . that you had or exchanged with any person regarding how (i) Thomas M. Cooley Law School reports its post graduation employment rates or (ii) your communications with David Anziska regarding any inquiry or investigation he discussed with you about how law schools report post-graduate employment and salary data."

Now it so happens that this discovery request isn't going to discover much. A year ago Anziska called me a couple of times because he wanted to discuss the class action suits Kurzon Strauss was then contemplating against various schools, but to the best of my recollection we didn't talk about Cooley specifically. And while I've published the equivalent of a fairly long book since then on various aspects of the law school scam, I've barely mentioned Cooley, and have certainly never bothered to break down the school's post-graduation rates for anyone.

I haven't warned people about the dangers of enrolling at Cooley for the same reason it would be a waste of time to warn a parent that it's a bad idea to hand a 15-year-old boy a bottle of Jack Daniel's and the keys to a new sports car. Some things are so obvious that it's pointless to belabor them.

In retrospect I rather regret having practically nothing to produce in response to this particular legal command. After all, in the context of the gathering disaster that is contemporary American legal education, Cooley is without question the prime example of a shameless diploma mill that would be shut down immediately if American law schools were subject to more than the most cursory regulation by either the ABA or the federal government, which through its no-questions-asked student loan programs pays a large portion of Cooley's operating budget.

Nevertheless, there is something potentially useful about reviewing Cooley's employment stats at the level of detail that is now available through the efforts of people such as Law School Transparency, in something of the same way it's useful to show 15-year-olds gruesome films of alcohol-related car crashes. In that spirit, let's compare Cooley's stats to, say, Stanford's, on the working assumption that the outcomes SLS graduates obtain are the kinds of things people borrow $115,364 (this was the average law school debt taken on by 2011 Cooley grads) in high-interest non-dischargeable loans in order to be able to do.

Graduating class of 2010:

Percentage of graduates who obtained jobs with law firms of more than 25 attorneys:

Cooley: 1.1%

Stanford: 51.1%

Percentage who obtained federal clerkships:

Cooley: 0.0%

Stanford: 29.3%

Percentage who were unemployed nine months after graduation, or whose employment status was unknown:

Cooley: 34.4%

Stanford: 0.6%

Percentage who were employed and reported a salary:

Cooley: 6.5%

Stanford: 88.5%

And so on.

One of many useful things law schools tend to fail to
teach their students is that lawsuits are often filed for reasons that have
nothing to do with actual legal rights and wrongs. A classic example is a strategic lawsuit
against public participation (SLAPP). The point of a SLAPP suit is not to
litigate valid legal claims but rather to censor critics, through legal
intimidation.

It is something of an irony that the first exposure many
current law students and people considering going to law school will get to how
a SLAPP suit works is being provided by the suit Cooley has filed against the attorneys representing former students suing the school, and the even more preposterous suit the school brought against four scam bloggers.

For instance the law school is suing "Rockstar5" for defamation and
wrongful interference with its business relations. As a strictly
legal matter, the complaint against Rockstar5 is very weak. For example, it claims the author is defaming
Cooley and its representatives by calling them "criminals." The
specific passage in which that word appears criticizes the school for admitting
people who shouldn't be in law school, and allowing them to spend $50,000 per
year in tuition and living expenses, even though such people "don't have a
shot in hell of practicing law."
The author then says, "Congrats you criminals, you have
accomplished robbery!"

You don't have to be a lawyer to realize the author is
not literally accusing Cooley's administration of robbery, but rather is
employing a metaphor to state his opinion regarding what he considers the
ethically dubious character of Cooley's business model. Indeed with trivial exceptions, almost
everything in the post is either a matter of undisputed fact or the statement
of an opinion-neither of which can form the basis for a valid defamation suit.
But SLAPP suits have little to do with legal rules, and everything to do with
the economic rule that rich and powerful institutions can employ the legal
process to crush dissent, by burying critics in a blizzard of litigation
expenses.

Cooley's real problem has nothing to do with supposed
defamatory claims on what, until it filed this suit, was a profoundly obscure
blog, and everything to do with what has been dubbed the the Streisand Effect. The Streisand Effect got its name from an ill-fated lawsuit brought by the
famous singer against a photographer who published a photograph of her Malibu
house on the internet. Streisand's suit backfired when publicity regarding it
led to the photograph being viewed by hundreds of thousands of web surfers.

Cooley is getting more on-line publicity than ever these days, such as for example this blog post, pointing out that the school's founder, "Professor Emeritus" Thomas E. Brennan was paid more than one million dollars between 2007-08 and 2009-10 for what even the school characterizes as less than ten hours per week of "work." Brennan's days seem to be in significant part filled by authoring a blog chock full of classic cranky old man rantings about, among other things, how The Gay is destroying the nation's moral fiber, while being paid more than $700 per hour (this assumes a 52-week work year) to compile "Judging the Law Schools," Cooley's very own ranking system, which in its 2010 edition is gracious enough to allow Harvard to deny Cooley the honor of being ranked the top law school in America (global and inter-galactic rankings are not yet available).

Rather than analyzing this matter any further I'll defer to the (apocryphal) words of P.T. Barnum, and cite H.L. Mencken's most famous dictum.

I have found in my life that when too many people speak up about a wrong, those committing the wrong try to bully. When they bully, it usually means they are hiding something. IMO, too many people know about the law school scam and as such, Cooley is just grasping for straws.

It is notable that this suit against the Anziska group has proceeded farther than the dozen or so lawsuits the Anziska group has filed against law schools. I do not believe any of those have made it to discovery.

"In retrospect I rather regret having practically nothing to produce in response to this particular legal command. After all, in the context of the gathering disaster that is contemporary American legal education, Cooley is without question the prime example of a shameless diploma mill that would be shut down immediately if American law schools were subject to more than the most cursory regulation by either the ABA or the federal government, which through its no-questions-asked student loan programs pays a large portion of Cooley's operating budget."

The problem is that when you have judges like Schweitzer, who don't have the scruples and morality required to bring justice to legal academia - places like Cooley thrive. At the end of the day they'll get their tens of millions of dollars in federal student loan money (most of which will go on IBR and not be paid back in full), and they'll have their $500,000 salaries, cush offices etc.

If you're allowed to dominate, why not throw in a SLAPP lawsuit here and there?

When the system is corrupt (see e.g. Judge Schweitzer's opinion where he blames the victim of a fraudulent statement, rather than prosecute the perpetrator) - such that schools like Cooley are allowed to run their scheme with impunity, collecting huge $500,000 salaries and taking tens of millions of dollars of taxpayer loans that will most certainly go on IBR and not be paid back - when they are allowed to dominate with such impunity, why not throw in a SLAPP lawsuit or two?

The system is corrupt. You can whine about it, but at the end of the day the powers that be (judges, ABA etc.) won't do anything about it.

Wow, Cooley law school, you just caught a tiger by the tail. You sure you want to do that?

As a practical legal matter, does the subpoena power of a state court in Michigan extend to Colorado? My suspicion is that it does not. I'd advise you to look at this Prof. Campos, as you may have just received free toilet paper from Cooley Law. (Insert own snide comment about the metaphor and other Cooley toilet paper here).

One of the things that Cooley do not seem to have considered in bringing this law suit is that: (a) it will be removed to Federal Court on diversity grounds; and (b) the defendants in a defamation case get discovery.

The latter is something Cooley ought to think long and hard about - truth is a defense to libel and a devious lawyer might wait awhile before lowering the boom on this case so as to force Cooley into a little discovery on the very issues they are complaining about. That could be very dangerous indeed for Cooley.

I just wanted to take a moment and thank you for this blog. There are few of us who can honestly say that we've made a difference in the world (and even fewer of us academics who can say so).

But this blog has made a real difference in the lives of many people (and hopefully will change the institutional structures for the better as well).

I personally know of several potential law students who you have saved from financial ruin because you've had the moral courage to sit down every day for the past year and write these entries (and, I suspect, at great professional cost to your career).

...to add to what 10:51/10:57 said: as an attorney several years out of law school who was considering a transition to academia, your blog was a significant factor in dissuading me from going through the AALS process. Although I have the usual grades, law school, publications, and clerkships that are prerequisites for academia, I don't have a sufficiently dazzling resume to be picked up straightaway by a top 14 school (i.e. a school where at least a supermajority of my students would be assured legal jobs upon graduation - if even that could be considered a sufficient employment rate to justify becoming a professor and taking students' loan money, which I think is questionable). As I watched my friends who are graduating from lower-ranked (but still T1!) schools without jobs and I read this blog, I just could not bring myself to try to join the ranks of law professors who were profiting from the student loan payments of the unemployed JD graduates that they had "taught". (I couldn't justify giving up my current job in which I represent indigent clients who desperately need counsel in order to write "theoretical" law review articles of dubious relevance to the bench and bar.) Watching the hostile reactions of the Prawfs crowd to this blog also helped to cement my decision - for a group of self-professed "scholars" who allegedly value intellectual honesty, they cannot bring themselves to acknowledge that they are unethically profiting from the loan dollars of students (a) to whom they can't provide relevant practical training, because they are practically inexperienced and in many cases have never represented any significant number of human clients (as opposed to "representing" corporate clients as a junior associate doing grunt work) and (b) to whom they can't deliver an education sufficiently well-regarded to enable the students to compete for the few jobs available in this difficult market.

"The Wreck of the Thomas M. Cooley" (with apologies to Gordon Lightfoot)

The legend lives on from the lawyers all 'roundOf the big school they call Thomas M. CooleyThe school, it is said, gives her grads up for deadAnd its library, they say, is quite roomy

With a load of student loans, several thousand accounts moreThat the Thomas M. Cooley would soon empty.That big scam, it's true, was a turd through and throughAnd the fails of its grads come often and early.

That school was a crime on the American sideA crummy diploma mill in Mid-MichiganAs the big toilets go, it was bigger than mostWith a CSO and a dean both well seasoned.

Concluding some terms with a couple of law firmsThat they sent fully locked and loaded for KurzonAnd later that month when the dean's phone bell rangCould it be that court word they'd been fearin'?

When Graduation Day came, the old crook (the dean) came on stage sayin'."Fellas, it's tough, but we no longer need ya."Nine months later, as employment surveys came in, he said"Fellas, your money was good, but now I don't know ya."

The Dean e-mailed in, he had discovery requests comin' inAnd his TTTT school and job was in peril.And later that fight, when the real stats were brought to lightCame the wreck of the Thomas M. Cooley.

Does any one know, where the love of God goesWhen your JD gets you just ten dollars an hour?The alumni all say they should have dropped out their first dayInstead they've got nothing but debt and wasted years behind them.

The alums' marriages split up or they might have suicided;Many became broke and went under.And all that remains is shame and blame in the facesOf the wives and the kids over their blunder

Ann Arbor expands its rolls, Grand Rapids bursts at the seamsThe dean adds rooms onto his nice Tudor mansion.Lansing, Michigan schemes off young naifs' dreams;Soon Tampa Bay will be open for morons.

As everyone knows Cooley's farther below even TouroShe'll take in any lemming that can find her,And the graduates will all go, as the dean and staff knowWith tons of non-dischargeable debt well-encumbered.

In a musty old hall in Detroit they prayed,In the Toileteer Lawyers' Cathedral.The church bell chimed till it rang twenty-nine thousand timesFor each grad from the Thomas M. Cooley.

The legend lives on from the lawyers all 'roundOf the big school they call Thomas M. CooleyOl' Cooley, it is said, gives her grads up for deadAnd the fails of its grads come often and early.

I just had to write about my experience the other day at the Richmond Airport. I arrive on a late night flight from Atlanata and I'm waiting on my bags at the baggage carousel. I stand their and I see two somewhat older ladies having what appears to be a brief spat. Eventually one of them takes off her jacket And she has on a ratty looking gray T shirt that says UNLV Law. The ratty shirt matched her otherwise ratty appearence. So me being the father of an attorney I jump on the opportunity to speak with her. Our conversation goes something like this:

Me-areyou an attorney? Did you go to UNLV?Her- No I actually teach thereMe- have you heard of the Law School Scam movement?Her- no I have not, what is it.Me- I tell her to,Google,Inside the Law school scam and tell her about Prof Campos.Her- she scrunched up her face as if she smelled something bad and says oh yeas I have heard of him.Me-I tell her briefly what the scam is about, bad number, schools,too many attorney and all that shit.Her- oh yes I have heard some schools do thatMe- there are too many attorneys and not enough jobs.Her- it's the economyMe- it's not only the economy. Google it you might learn something.I walk away and she yells to me It's the economy.I yell back Google It!

So I look her up on the UNLV Website, not hard to find because she says she was at Florida State before. I just walked away and though this lady has her head up her ass and she is a Law Professor.

"As a practical legal matter, does the subpoena power of a state court in Michigan extend to Colorado? My suspicion is that it does not. I'd advise you to look at this Prof. Campos, as you may have just received free toilet paper from Cooley Law. (Insert own snide comment about the metaphor and other Cooley toilet paper here)."

MI does not have any jurisdiction in CO.

But, if the case had been moved to federal court (which I think it did), the federal subpoena is likely valid.

When some undergrad tells me about their dreams about going to law school I tell them to see the Youtube news videos of unemployed law grads working at pizzerias, Starbucks, and Northern Illinois Law School graduate Reema Bajaj was arrested in Chicago for alleged prostitution charging clients only $50. Elliot Spitzer's "date" charged $5,000 a swing and his call girl never went to law school. These news videos, even though anecdotal, cause prospective law students to sober-up from their drunken enthusiasm for enrolling. Then I tell them read the scam-blogs. And if they really want to be a lawyer, I would suggest they sign up for Taft online Law School even though it is not ABA approved since it is only $8K annually or another California correspondent school Some are as low as $3L annually. At least you can take the California bar and if you pass can brag you are a licensed lawyer. And when you cannot find employment in the legal field, your student debt will be the price of a mid-level car. On top of that, you earned your law degree at home while working so you saved on opportunity cost and also can tell your prospective employers you are brilliant but had to settle for correspondence law school balancing work and family.

At a faculty meeting yesterday, I urged colleagues to rein back an aggressive hiring plan (up to five new tenure-track faculty next year) until we had considered as a faculty the problems of student debt, reduced job outcomes, and other economic changes. I received a mixed reaction at the meeting--some people agreed but not enough, I think, to outweigh the pro-hiring impulses.

I was most struck, though, by a comment made after the meeting. One colleague assured me that "student debt definitely is a problem, but we can take care of that and it need not affect faculty hiring." I was puzzled what he might have in mind, so I did some quick calculations.

Average debt (law school only) for OSU's class of 2011 was $87,770; 84.8% borrowed. Median 9-month salary for that class was $60,000. Only 49% reported salaries, so the $60,000 probably is more like the 75th percentile. But let's be generous and accept it as the median.

What would it cost to take the relatively modest step of reducing average law school debt to equal "median" salary going forward? We're hoping to enroll 210 students next year and, if you crank the above numbers for that class size the total is just over $4.9 million. Of course that assumes there is no further tuition increase (untrue) and no further deterioration in the job market (we can hope, but...). And it does nothing to address the debt of students who have already graduated.

$4.9 million! Even five faculty lines don't come close to generating that amount of cash. My colleague--like, I think, most faculty, doesn't have a clue just how deeply we are pushing students into debt. Taking $4.9 million out of our current budget would be a huge hole. And, here's a further kicker: the money couldn't be taken out of scholarships, because that would just generate more debt. To put it another way, debt figures already build in the discounted prices we charge students with "scholarships."

To be very clear: I think we *must* make adjustments to address this issue, going even further than the modest reduction outlined above. The "huge hole" reference simply demonstrates how out of touch my colleague is in thinking that this is a simple problem to solve.

Summer to-do list: (a) calculate more numbers, (b) tell as many people as possible, (c) repeat (a) and (b).

I'd like to write a long angry response to Cooley pointing out their notorious history and how it is a mere contrivance that ultimately victimizes taxpayers, but I don't give enough of a shit to put forth the effort. Why? It's fucking Cooley. Why waste your energies articulating something that everyone already knows?

Second, the statement, "student debt definitely is a problem, but we can take care of that and it need not affect faculty hiring," is a prime example of bubble psychology. Homeowners in Las Vegas circa 2007 were engaging in the same brand of magical thinking.

Just total corruption everywhere in this country. I picked up Nebraska lawyer John DeCamp's book The Franklin Cover-up a few days ago and read about 60 pages before I stopped. This country is messed up right to the top. The legal profession, naturally, is one of the worst. American society itself has become nothing but a corrupt scam run by corporations. Nothing surprises me anymore. Law schools are really like the Catholic seminaries that turned out abusive priests.

7:26 "American society itself has become nothing but a corrupt scam run by corporations." Well perhaps so. But one of the few places this corrupt corporate scheme hasn't reached is the law school scam. The few scrofulous proprietary law schools excepted, the beneficiaries of the scam are the law schools themselves, most particularly the administrators, faculty and six figure "staff". In the words of the near banal cliche of investigative journalism, follow the money. From the merely idle and overpaid to the outright fraudulent (law and _____, critical legal theory and such not)the beneficiaries of this gold rush are not corporation. 90%+ of ofthe recipients are liberal or left. No Dick Cheneys here. Okay the liberal or left remark was a little unfair since their public politics is largely a matter of protective coloration. William Ockham

Since the subpoena asks for "all documents and communications . . . that you had or exchanged with any person regarding how (i) Thomas M. Cooley Law School reports its post graduation employment rates," I'm half-tempted to write a satirical white paper about Cooley and send it to LawProf's email unsolicited. A fuller record IS better, right?

In the law school food chain, Cooley is like the communal toilet. No matter how lousy your school, you can always take a dump on Cooley. What they're doing should be illegal.

At a faculty meeting yesterday, I urged colleagues to rein back an aggressive hiring plan (up to five new tenure-track faculty next year) until we had considered as a faculty the problems of student debt, reduced job outcomes, and other economic changes. I received a mixed reaction at the meeting--some people agreed but not enough, I think, to outweigh the pro-hiring impulses.

I was most struck, though, by a comment made after the meeting. One colleague assured me that "student debt definitely is a problem, but we can take care of that and it need not affect faculty hiring."

---------------

What?

You know what, whatever. Soon OSU will be as overpriced as those private trap schools everyone complains about. Did Henderson help you at all?

Ah but the American education system is not without the influence of the corporatocracy.

Take one Lawrence Summers, who while not heading a corporation, was heavily involved in its machinations through the World Bank*, later as Secretary of Treasury. It was under Summers reign that Gramm-Leach-Bliley Act repealed the restrictions of Glass-Steagall. Summers would then become the President of Harvard.

*The World Bank, the IMF, all have a history of making predatory loans to third world nations, who then are unable to repay the loans, making them subservient to said bank. They get the loans made by making bogus predictions as to the success of the loans. Does that remind anyone of another scam?

I'm pretty sure a concerted effort at purposely defaming Cooley "law school" would reverse the SLAPP. It has to be cheaper to repeatedly post defamatory comments (assuming that such comments would be untrue and assuming it is even possible - just from a conceptual standpoint - to defame an institution that was pretty much a punchline before things really got cooking) than it is to employ lawyers at Miller Canfield to sue them all.

First, a typical discovery request can only be made against a party. That is, you have no obligation to respond to interrogatories or requests for production unless you are a party to the case.

To the extent you are a witness for the defendants in an expert capacity, expert discovery is extremely limited and generally requires a motion be filed with the court.

Process from another state does not run in Colorado. They need to hire a local attorney to issue subpoenas and conduct the depositions. The out of state attorneys can appear pro hac vice after securing local counsel and receiving the approval of the District Court in Boulder County.

To the extent they may try to elicit opinions from you, you are entitled to compensation as an expert. Also if they do not include witness fees with the subpoena, move to have it quashed. I would also ask for the time in spent in reviewing your records.

I would move to quash a subpoena on principle alone. You are not a party to the case, and what you have is probably not relevant to the case. This is pure harrassment, plain and simple. I would respond in kind by making it very expensive for them.

Since law school professors don't tend to practice law on a day to day basis, it's a good idea to consult with someone who does.

Also, remember that a subpoena has to be to something: a hearing, a deposition or the like. You simply cannot be served witha subpoena requesting documents. Most likely, it would be a deposition because you cannot be compelled to attend a hearing in another state. The deposition must be in Colorado and specifically Boulder.

Secondly, if the attorney served a subpoena upon you without the assistance of local counsel, it is called "practicing law without a license." I would contact bar counsel in both states about this.

Finally, when you move to quash, make sure you request attorneys fees for initiating a groundless and frivolous action.